Religious Liberties Practice Group Teleforum

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On May 3, 2018, President Trump signed an executive order establishing a White House Faith and Opportunity Initiative and amending an existing executive order setting forth fundamental principles and policymaking criteria regarding partnerships the federal government forms with faith-based and community organizations to serve people in need. In his executive order, President Trump struck provisions of this earlier executive order that required religious providers to refer social service beneficiaries to an alternative provider if the beneficiary objects to the religious character of the organization, and also required that written notice be given to beneficiaries regarding such protections. Stanley Carlson-Thies and Melissa Rogers will provide background on the work of previous administrations on these issues and analysis of President Trump's executive order.

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Event Transcript

Teleforum:Welcome to The Federalist Society's Practice through podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Wednesday, May 30, 2018, during a live Teleforum conference call, held exclusively for Federal Society members.

Laura Flint:Welcome to The Federalist Society Teleforum conference call. This afternoon our conversation is on the White House Faith and Opportunity Initiative Executive Order. My name is Laura Flint and I'm the deputy director Practice Groups here at The Federal Society. As always, please note that all expressions of opinion are those of the experts on today's call.

Laura Flint:Today we are happy to have with us Melissa Rogers, nonresident senior fellow of Governance Studies at the Brookings Institution, and Stanley Carlson-Thies, founder and senior director the Institutional Religious Freedom Alliance. After hearing from our speakers, we'll go to audience question and answer.

Laura Flint:Thank you for speaking with us, Stanley. The floor is yours.

Stanley Carlson:Well, thank you very much, Laura, and thank you, Melissa, for being part of this as well. Our focus is the May 3 executive order that President Trump signed, establishing a White House Faith and Opportunity Initiative. This comes on the background of other efforts in previous administrations, so we'll sketch some of that background and then talk about what's different about the Trump executive order and the principles he laid down.

Stanley Carlson:I'm Stanley Carlson-Thies. I'm glad to be joined by Melissa Rogers. She was executive director of the White House Office of Faith-Based and Neighborhood Partnerships in the last number of years in the Obama administration, and I was on the staff of the George W. Bush White House Office of Faith-Based and Community Initiatives at the very start of his administration when that initiative was kicked off, so we kind of ... book ends of those two administrations and their so-called faith-based initiatives.

Stanley Carlson:Between those times of service and before them, Melissa and I have often been engaged with others in initiatives to find or create common ground considering this particular big question: What are the legitimate freedoms and restrictions on religious organizations that accept federal government funds, provide services to the public? Adoption services or welfare services, overseas development, and so on.

Stanley Carlson:This question's even more important because a lot of federal spending goes to state and local governments and makes up a large part of what they spend on social services, healthcare, and so on. The federal rules go with the federal money down to state and local governments, so the rules set in this initiative or as part of this initiative effect a lot of the social spending that's done by governments at all level.

Stanley Carlson:So what should those rules be? What does the Constitution require? What's fair for all the participants, government, different kinds of governments, religious organizations of varied faiths, secular organizations that are competing for funds, the people who need government-supported services.

Stanley Carlson:Starting back in the mid-1990s, Melissa and I have worked on, with many others, to promote policy laws and regulations that answer these questions within the Constitutional boundaries and in a way that different points of view would recognize these as being Constitutional. I think what we will talk today, particularly about President Trump's executive order and its background, which contains his revisions to the White House Faith Initiative and his revisions to the principles that should govern the federal partnerships with faith organizations. We're gonna emphasize specific changes. We will also be addressing this larger question of the common ground that has supported and should support the rules for the federal engagement with faith-based organizations.

Stanley Carlson:On this call I'm gonna set the stage, some of the background, makes it easier to see what's different, what's continuity with President Trump has said in his executive order. Then Melissa will talk about how President Obama took up the precedence of the Bush years and what he did with that legacy, and then she'll address the changes that come with President Trump. And then I'll reflect a little bit further on President Trump's changes. And then we'll open up the discussion to you on the call.

Stanley Carlson:Starting out here on the background on the faith-basedinitiative, that shorthand that people use. We want to always remember that this is not just about faith organizations, faith-basedorganizations, but also about secular ones, particularly smaller ones that typically haven't been so closely engaged with government services and now are being asked to be more involved. The background on the faith-based initiative and then the actions of the Bush administration.

Stanley Carlson:It may be surprising to some of you on the call, but actually the basic principles and the idea of a federal faith-based initiative are now than two decades old. The basic principles, the idea go back at least to 1995 and 1996, when Congress was revising, fundamentally revising, Federal Welfare law. In that redesign, many in Washington had decided that it was important that the federal rules attached to federal government money should be changed so that religious organizations that provide services to the poor could participate as part of the Federal Welfare spending, and that they would be able to offer services without a concern that they would have to set aside or suppress, diminish their faith character.

Stanley Carlson:Why is that a concern? Well, if they had to suppress their faith character or if their faith character made them ineligible, then they couldn't be part of the service delivery system, but also perhaps with a change in how they served, what they did would not be as effective as trusted by people coming for help.

Stanley Carlson:So why a desire to change the rules? I just said something about that. I think there were two major reasons. One was a perception that the Supreme Court's interpretation of the rules that govern church-state relationships with federal funds had changed. You could say, I guess, that an older view was strict separation of church and state and that federal money should not go to any organization that looked particularly religious. A newer view, sometimes called equal treatment or neutrality that the federal government should look out and find the best providers of service and not exclude religious ones, although religious organizations that get direct federal funding, that grants and contracts, can't use that money to spend it on religion. But nevertheless, they should be eligible to provide other kinds of services.

Stanley Carlson:On the one side was some new ideas about the proper limits in the constitutional framework, uh, for government funding of organizations including religious ones and then I think at the same time this policy reason I alluded to for wanting to change the funding restrictions. That policy reason was a growing sense of very visible in Washington DC in the 1990's, that sometimes non-government organizations and faith-based organizations in particular uh, could be better able to help people in need than secular programs and bureaucratic government programs. Um, If you just consider the value, uh, the valuable-ness of services that are offered by organizations that are local and seeking help as opposed to going to some other service provider that might be more professional, but unknown and uh, not trusted in the same way by somebody who's in a crisis.

Stanley Carlson:So this idea, that sometimes faith-based and other local organizations could be the uh, really good providers of services and maybe even the best providers of services is actually reflected in a paragraph in President Trump's recent executive order and, uh, I just want to quote a few sentences to give you the flavor of the kind of thinking that was there in the 1990s and has been carried forth in the twenty some years since then.

Stanley Carlson:Uh, so here's the few sentences from President Trump's executive order of early May. "Faith-based and community organizations” he says, “have tremendous ability to serve individuals, families, and communities through means that are different from those of government and with capacity that often exceeds that of government. These organizations lift people up, keep families strong, and solve problems at the local level. The executive branch wants faith-based and community organizations to the fullest opportunity permitted by law to compete on a level playing field for grants, contracts, programs, and other federal funding opportunities. The efforts of faith-based and community organizations are essential to revitalizing communities and the federal government welcomes opportunities to partner with such organizations through innovative, measurable, and outcome driven initiatives.” End quote.

Stanley Carlson:So, that, uh, similar idea that people had back in the, uh, mid-nineties as they were thinking about welfare reform and so with that idea that sometimes religious organizations could be the best providers they ought to be invited in and uh the Constitution and Supreme Court interpretations no longer requires that they be excluded or discouraged from applying for federal funding. Uh, with those ideas as background in the mid-nineteen-nineties as part of welfare reform, Congress adopted some new funding rules and changes to funding rules called Charitable Choice. So this was part of federal welfare law that governed federal money for welfare and that money typically went right to states and then states allocated it to private providers or ran their own services s ... And with that money from the federal government, ca - came these new rules called Charitable Choice. So, this is, uh a set of, uh, provisions in the welfare law that did a number of things. So let me just say what those are and this gives a background to where we are now with, uh, President Trump and some changes to these principles that he proposed.

Stanley Carlson:So, uh, these provisions, Charitable Choice, uh in the first place prohibited government officials who are, uh, making awards of funding for the provisions of services from being biased either for or against religious organizations applying for money. So the money ought to go to the best provider, religious executor without a biased one way or the other. Second, uh, the rules required government decisions and regulations to respect, here's m-my line, which to respect and not, uh, suppress the religious character of faith-based organizations that accept federal money to provide services so uh, ability to have a board that has uh, religious people on it, for example, and uh religious atmosphere of the organization and so on. That's all outlined in principles and laws and regulations.

Stanley Carlson:Uh, Charitable Choice required re-religious organizations that accepted these federal dollars to provide services, not to discriminate against people seeking services either because of the religion they professed or the lack of religion or that they just did not want to take part in religious activities. They still could come for services p-provided with federal funds by religious organizations. Uh, Charitable Choice further prohibited religious organizations from spending their government grant money or contract money on religious activities and religious expression. Yeah know, for example, typical example buying Bibles or paying for worship uh, things like that. That was all illegal.

Stanley Carlson:Further, Charitable Choice uh, did say however, that religious organizations could offer prayer worship, other religious activities but that would have to be paid for with private funds, not-not federal funds and would have to be offered voluntarily to the people coming for services. And they couldn't be required to take part in such religious activities. Then in kind of a special funding stream, a funding condition, because of the, Supreme Court's uh, views on indirect funding or vouchers, scholarships, money like that, that if that's the way that money would come to an organization then, religion could be part of the service and you think here where the, essentially, the money or the authorization to get services goes to the beneficiary and that person can pick from a number of providers and if that's, uh, setup and among the providers are secular ones then the person could predict, could choose a religious provider that would offer; that would have religion woven into the services. That, that's a kind of special case of voucher indirect funding.

Stanley Carlson:And then finally, as part of Charitable Choice in a particular note given uh, President Trump's executive order, um, just to be sure to protect all the rights people coming for assistance in Charitable Choice there was a provision that a beneficiary that goes to a faith-based provider for help but then decides that he or she finds the atmosphere religiously unacceptable could request a referral to an alternative provider that was acceptable to them religiously and then the government agency that provided the funding had to find that suitable alternative provider for the person who just said, yeah know, this Salvation Army, or this Jewish organization, um, I-I just don't feel comfortable there find me another place. So that was part of Charitable Choice as kind of a super protection for people coming for help.

Stanley Carlson:Alright, so, you see here protection for the religious organizations, for the beneficiaries and then kind of a level, uh, playing field in which whatever the organization is, it should not, uh officials shouldn't be biased for or against it. That was all part of Charitable Choice which became part of the 1996 Welfare Reform Law and then was added that same kind of language to three other laws that President Bill Clinton signed into effect during his administration. Uh, at the end of his admin-administration, in the presidential election of 2000, um, both candidates who were running Republican and Democrat, uh Texas Governor George W. Bush and uh, Vice President Al Gore, they both said Charitable Choice is a good idea we should expand that to other programs and make it possible for religious organizations to take part in other services, uh as well in these specific ones where the laws had been passed during the Clinton years. Even before George Bush gave his big speech saying this should happen, Al Gore had given his big speech saying this is what ought to happen. So, kind of uh, interesting consensus at that point.

Stanley Carlson:Uh, when Bush became president, took office in January 2011 one of the first things he did was to declare his administrations commitment to these principles of Charitable Choice and more involvement by faith organizations and federally funded services and within a month of becoming president he had created, what he called a White House Office of Faith-Based Community Initiatives. Part of the executive office of the president. And then also counterpart Centers for Faith-Based and Community Initiatives in five major federal departments that do social service spending. That is HHS, uh, Housing and Urban Development, Labor, Justice, and Education. Uh so, in the centers that are spending federal money to provide services to make sure that, uh faith organizations and smaller community groups have a fair chance at that funding. Later on, during the Bush years and Obama years, other centers have been opened up. Homeland Security, Commerce, Veterans Affairs, Department of Agriculture, USAID, oversees development in the small business administration and an emphasis on faith-based involvement. Also, at the Corporation for National Community Services. So, AmeriCorps and those kind of programs.

Stanley Carlson:Uh, so, White House office and then these centers and these agencies. So what's the point of all of these? Well, in the first place to make sure that federal funding is awarded according to the Charitable Choice principles those kinds of principles. Secondly, to identify barriers in the way that federal government operates that make it difficult for faith-based organizations and smaller secular organizations to work with the government and recommend ways to get rid of those barriers. Uh, third, to build connections uh, between local faith-based and secular organizations and the government so that the government can learn some of this bottom up uh, different way that uh, community organizations help their neighbors. And then also to help federal program officers develop innovative new programming that better incorporates these organizations and their style of doing things. And in that whole process, the White House faith-based office would work with the centers and these agencies that are designing programs and allocating money.

Stanley Carlson:Um, as part of this work to revitalize social programs, President Bush, besides setting up these initial offices in the White House office, the centers in the White House office. He issued executive order 13279 in December 2002 that said, when the federal government spends money, uh for social services it ought to follow those Charitable Choice like principles so Congress has passed Charitable Choice for a number of laws. President Bush said let's take those principles, put them into the regulations that govern other federal spending and through the normal regulatory process that was done over the next few years. These often called equal treatment regulations, very similar to Charitable Choice uh, that were then adopted across federal agencies that uh, do spending for social services.

Stanley Carlson:So by the end of President Bush's administration there were these White House office and centers and these various agencies and these equal treatment regulations along with Charitable Choice laws and those regulations that stated, uh, the freedoms and restrictions on faith-based organizations that get federal dollars and that applied to federal money spent by the federal government or state and local governments. All of this in an effort to kind of rejuvenate programs, to make sure that faith organizations had an equal opportunity to compete and then hopefully that, uh, federal services would become more effective.

Stanley Carlson:So, I'll leave it there at the end of the Bush administration and turn it over to Melissa Rogers.

Melissa Rogers:Okay, great. Thanks Stanley. Good afternoon to all of you and thanks to the Federalist Society for inviting me to be on the call, I'm really looking forward to our conversation in a few minutes. So let me take up where Stanley left off with the Obama administration.

Melissa Rogers:Um, during uh, the campaign then Senator Obama made a speech saying if he were elected he would retain the White House office that President Bush had established while putting his own stamp on it's activities. And indeed a couple of weeks after he took office in 2009, President Obama issued an executive order establishing the White House Office of Faith-Based and Neighborhood Partnerships and uh retaining these agency centers for faith-based and neighborhood partnerships that Stanley described.

Melissa Rogers:And all those offices immediately began working to establish partnerships to serve people in need, both financial partnerships and non-financial partnerships and to serve people in need both at home and around the world. So the White House office for example worked closely with the President and other White House and administration staff as well as faith-based and humanitarian groups on issues like stopping the spread of diseases like Ebola and Zika, attacking poverty and increasing economic opportunity, combating human trafficking and climate change, which of course climate change threatens as you know most vulnerable first and foremost and welcoming refugees for example who had been admitted to our country after undergoing and exacting vetting process.

Melissa Rogers:Um, and I could say a great deal more about that work but during this call I'm going to focus on instead the church state rules that apply to these partnerships that Stanley's already described and how the Obama administration addressed these rules and then say a bit about how President Trump changed that with his um, executive order earlier this month.

Melissa Rogers:When President Obama established the White House office in February 2009 he did not remove any of the substantive provisions that President Bush had put in place with his faith-based initiative. All the ones that Stanley just described. Instead, President Obama had a different idea about the best way to proceed on these issues some of which were controversial and President Obama's idea was to appoint what he called an advisory council on faith-based and neighborhood partnerships. This was established in the same executive order that he used to open the White House Office of Faith-Based and neighborhood partnerships. And the council included people who were reli- representing religious organizations as well those who were representing non-religious community or humanitarian organizations that served people in need.

Melissa Rogers:And quite intentionally President Obama appointed a very diverse advisory council including members with different political, ideological, religious and theological leanings. He wanted to bring people together across some of these difficult issues and ask them to seek common ground and recommend ways uh, that the administration could strengthen the partnerships that it forms with faith-based and community organizations. And actually within, there were working groups within the advisory council that captured even more diversity.

Melissa Rogers:For example, this specific working group that was tasked with examining church-state issues included Stanley, a former staff member of President Bush's White House as well as the head of Americans United for Separation of Church and State and leaders falling somewhere in- between, including me. So you can see there's a very diverse group brought together and asked to seek common ground.

Melissa Rogers:Well, you, it won't surprise you to hear that this group could not agree on some important church-state issues, but members were able to agree on others including the notion that more could and should be done to protect the religious liberty of social service beneficiaries. And so what the council did was unanimously make a slate of recommendations to President Obama and some of those recommendations related to direct federal aide such as grants and contracts um, that, that subsidizes social service programming.

Melissa Rogers:And I'll refer to one of those recommendations that Stanley mentioned as a call for imposing an alternative provider requirement. The alternative provider requirement says that if social service beneficiaries object to eh religious character of a federally funded social service provider they should be referred to an alternative service provider of comparable valuable, value and accessibility. Now, Stanley mentioned that this requirement was already part of some long standing statutes and reg, and regu, accompanying regulatory language that applied to a few federal grant programs.

Melissa Rogers:What council members did was recommend that this alternative provider requirement be applied across federal grant programs so that it would benefit a much wider group of beneficiaries. So council members agreed on that and made that recommendation to President Obama. They also agreed on issues like, um, the fact that beneficiaries should not be discriminated against due to their religious beliefs or lack there of. That any privately funding religious activities have to be separated from activities funded by direct aid. That beneficiaries should not be required to participate in religious activities like worship or Bible study or discriminated against for doing so - for refusing to do so. And additionally, the council recommended that beneficiaries should receive a written notice to ensure that they understood protections like these because we realize that there really could be no guarantee that beneficiaries would understand that they were protected in these various ways under federal law.

Melissa Rogers:So, in November 2010 President Obama embraced these recommendations by signing them into law via an executive order. This on was executive order 13559. And then after a public notice and comment process nine federal agencies issues final rules implementing this executive order and that was a process I coordinated when I served at the White House.

Melissa Rogers:So under those, the rules religious organizations that receive direct federal aide for domestic programs are required to make reasonable effort to refer beneficiaries to alternative providers if the beneficiaries object to an organization's religious character. And such religious providers are also required to provide beneficiaries with written notice of this and other beneficiary protections as well as given specific contact information that they can use to report any violation of the rules.

Melissa Rogers:So, just let's consider a few examples to think about how these rules changed things across the federal um, grant and contract landscape. And here I'm just giving you a few cases to flush this out. Assume an Orthodox Jewish man was assigned to a federally funded employment training that mee- program that meets in a church. And assume also that due to his religious beliefs he cannot enter a church and ask to be referred to an alternative ser - alternative service provider. Under these new rules that the Obama Administration established we could be confident that reasonable efforts would be made to find alternative providers in such a case for this man.

Melissa Rogers:Take a different case. Assume a Catholic woman who is a victim of human trafficking is served by a federal grant too that's an Evangelical organization. Assume also that this woman would prefer not to attend a privately funded Bible study that the evangelical provider separately offers because the Bible study conflicts with some of her religious beliefs, but she's fearful that not going to this Bible study might jeopardize her access to governmental benefits. Under the new rules for the Obama administration we could be confident that this woman would be informed that she need not participate in privately funded religious activities that happen separate from the grant program in order to receive the federally funded social services.

Melissa Rogers:Or consider a different case. Assume a woman participates in a pregnancy prevention program that's funded by a federal grant but is bothered by the fact that program leader proselytizes. Under the Obama rules we could be sure that the woman would learn that providers receiving direct federal aide must separate any privately funded religious content from the government funded program and she would also have specific information about how to report any violations of the rules to the relevant government entity.

Melissa Rogers:Now, I've been referring to these as the Obama rules but it's very important to remember that president Obama adopted these rules based on the recommendations of the very diverse advisory council made up of people of different political leanings, different religious traditions, and no religious tradition and different ideological perspectives. So it really was a common ground project and this added prote- these added protections for beneficiaries were the result of common ground deliberations.

Melissa Rogers:So, you know, with the incorporation of these new common ground protections and federal regulations we saw that you know, they helped tamp down some of the controversy of our partnerships between the government and faith-based organizations. Now to be sure some progressive still opposed certain rules that President George W Bush had put in place, but these new protections ameliorated their concerns while also drawing the support of conservatives. And again in addition to the substantive protections, the written notice served the key purpose that of ensuring beneficiaries actually knew about the protections that were there for their religious liberty. And at the same time it served as a good reminder for religious providers about the rules that are in place.When they handed out these notices they were reminded that these are the things that they have to carefully observe.

Melissa Rogers:Earlier this month however President Trump signed an executive order that striked the alternative provider requirements from President Obama's executive order. President Trump's order also strikes the requirement that beneficiaries receive a written notice outlining protections for their religious liberty. So these beneficiary protections were removed and thus the confidence we had about the cases like the ones I described earlier was also removed.

Melissa Rogers:Um, the White House also no explanation, at least that saw, for its actions but supporters of the initiative described a few justifications. First they said that requiring religious providers to make reasonable effort to identify alternative providers and offer referrals, uh was not a good use of these religious providers time they said. Um, they said if there's any referral requirement it should be placed on government instead. Now religious providers under certain laws and regulations have long had to make referrals to alternative providers under a few federally funded programs with no reported problems that we have seen.

Melissa Rogers:Um, but deciding to re - to place this responsibility on government instead that could prove to be a respectable choice, but striking the religious liberty protections which is what President Trump did is not, uh, in my view.

Melissa Rogers:The second offered justification for sending these protections was some pro-life religious providers fear that uh, apparently that they would have to make referrals to providers that also offer abortions. Now, available data suggests that these referrals are rarely requested and this specific kind of referral request seems even more unlikely. In such a case however, the religious provider if it did have this kind of objection could request and receive an accommodation under the Federal Religious Freedom Restoration Act. One that would honor their objection and also find another way to make a referral. In other words, have someone else do it that didn't object to making the referral.

Melissa Rogers:What the federal government should not do in my view, however is remove protections for religious liberty of countless Americans. In this case, social service beneficiaries due to the slight possibility that a religious organization might one day have to su-successfully raise a RFRA objection to a referral.

Melissa Rogers:Some have also said that this separation requirement, ones requiring that privately funded religious activities be separated um, from government grant funded activities should be the real focus. In other words, the separation requirement should be the thing we work on and the alternative provider requirements are not really needed. Now to be sure, the separation requirements are very important but one cannot assume that those requirements will always be perfectly observed and even if they are some may still object to receiving federally funded services in a religious context. And if we were to respect the consciences of beneficiaries then I, I certainly believe we should then we should include these additional protections too and that's exactly what the diverse advisory council that was established by President Obama recommended.

Melissa Rogers:It's also been said referrals are rarely requested so eliminating the protection won't make a difference for beneficiaries. It does seem like requests for referral are rare but that doesn't mean they aren't important and I just refer back to my example about the Orthodox Jewish man in the church. Yeah know, just because protections aren't widely used don't mean that they're not extremely important to the people who claim them. Um, further the fact that referrals are apparently rarely requested means that the entities charged with making the referrals should not have much work to do to comply with those requirements.

Melissa Rogers:So, just in closing I would offer my views summarized here to just say that the religious liberty of beneficiaries is no less important than the religious liberty of providers or anyone else. We have to protect everyone. Providers, beneficiaries, everyone involved in these transactions and partnerships. And also I think removing the religious liberty protections for beneficiaries in the name of religious liberty actually taints, the, the very great cause of promoting religious liberty.

Melissa Rogers:So by doing this I, I feel President Trump not only dealt religious freedom a serious blow he also damaged efforts to find common ground on church-state issues and undermined support for partnerships the government forms with faith-based entities. And my view is one way or another those who value religious liberty for everyone and these very you know, important social service partnerships that serve people in need. In other words, people who count on religious Liberty for everyone and the social service partnerships must find a way to fix these mistakes that have been made with this most recent executive order.

Melissa Rogers:So with that I'll just say thanks again. I look forward to your comments and questions and I'll turn it back over to Stanley now.

Stanley Carlson:Alright, thanks Melissa that was, uh clarifying and uh, and clear and uh, passionate, about uh some concerns I have as well. I-I just like to make a few additional comments on what President Trump has done. I've organized them into seven observations. Um, some of them very brief.

Stanley Carlson:First one is just this, I think it's very significant however much we're disagree or agree with the specific things that President Trump has done with his executive order, I think it's really important that this is the fourth federal administration that's worked away at this topic very seriously, um, investing um, you know resources and thinking about how to make these partnerships work, uh, as well as possible. That means Constitutionally but also effectively on the ground.

Stanley Carlson:So going back to the Clinton years with laws that um, uh Congress passed, the president signed, uh in one case one of the laws was, uh a joint progress of Congress and the White House and then with Presidents Bush and Obama having very robust faith-based and neighborhood partnerships uh initiative setting up offices and centers and then President Trump who initially didn't speak on this topic, but did allow the centers to continue to operate and uh, appointed in many cases new leaders for them and uh, gradually kind of warmed up to this topic and then issues his own executive order to say let's continue this albeit with some changes. So I think that's really important. These are different administration. Very different views on many things including church-state relationships, but a great deal of continuity over four administrations. Now, in a very turbulent time. So I think that's very noteworthy.

Stanley Carlson:Um, secondly uh, as I just mentioned both Presidents Bush and Obama had what they called a White House Office of faith-based and and then they changed the name slightly on the second part of it, um, these were independent office with their own name, clearly structured with an advisor, executive director who had direct access to the president. Could talk to cabinet secretaries and so on. That uh, kind of setup has been changed now in President Trump executive order so instead of a new White House office with a new name there's now a White House advisor for faith-basedand opportunity initiatives. This person will be uh, as part of the office of public liaison instead of ind-independent office. So it's a little bit different configuration.

Stanley Carlson:Um, one good thing is there's uh close connection with domestic policy council and that's important because these things that go on in the so-called faith-basedand neighborhood partnership arena have to do with policy. It's not that government has chaplains that uh, officials go to when something bad happens or uh, just to rah-rah about the importance of faith or secular groups or whatever, but this has to do with policy and how to make it better. And so, good to have a connection with the domestic policy council.

Stanley Carlson:A little bit troubling that this official is located in the office of public liaison which is an outreach office not a policy one, but I will say in the executive order the president stressed that this White House official will be working regularly with the agency centers that Melissa talked about and I've talked about in these uh, various federal agencies to make sure that policy listens to um, local groups, that uh, barriers are not put in the way where they shouldn't be and that uh, a kind of grassroots and even uh faith friendly atmosphere is created in federal programs consistent with laws and constitutional principles. So, even if the new advisors in office of public liaison there's still is this strong link into policy making and I think that's really important.

Stanley Carlson:Um, third, President Trump did not enter office, as far as I can see, with a strong um, a history of working with faith organizations the way that President Bush and President Obama as well. They in their own work in the past had a lot of connection with community organizations and faith organizations. Uh, President Trump has a different experience. But he did stress during the campaign and since he's been president, religious freedom or religious liberty is an important thing that he wants to lift up and uh, you may recall that uh, president, excuse me, Attorney General Sessions was asked to, last fall, um write up a document on how the federal government could respect uh, the religious freedom requirements of the constitution in it's operations.

Stanley Carlson:So uh, very lengthy document about the Religious Freedom Restoration Act and grants and contracts and other things that the government does and so in this executive order that President Trump signed, one thing he did was to say that in federal agencies, um, offices that don't have a faith-based and neighborhood partnership center ... Um, I should change that. They're now called faith-basedand Opportunity Initiative Centers. Um, if they don't have a center they ought to have a designated official who will be a liaison to the White House official. And I think one of the ideas here is that if uh, persons or organizations run into some obstructions because they're religious exercise they have somebody to talk to about it. Why is there this restriction? Is it appropriate? Should it be cleared away? So, I think that religious freedom focus comes out in this establishment of these new liaisons across the federal government.

Stanley Carlson:Uh, fourth point, um, Melissa's spoken very clearly about what's happened with the alternative provider guarantee that was put in place on the advice of that very diverse advisory council under President Obama. Um, I-I do think that alternative I call it a kind of super protection, I do think the primary protection is that federal direct funds can't be spent on proselytizing religious activity that providers can't discriminate against somebody based on religious but it still is the case that somebody as she gave some good examples might go to a provider that is religious and find the environment uncomfortable um, or they might not know what their rights are so the fact that the uh, the executive order just removed that uh, alternative um, I also think is very unfortunate. So, I did hear myself from faith organizations that found the referral obligation potentially very troubling. Yes, they do have recourse to the Religious Freedom Restoration Act but of course if these things can be cleared up on a policy basis that's better than requiring somebody to refer to another law and the make uh, a special arrangement with the officials for a problem they've run into.

Stanley Carlson:So I personally think the best way to resolve this it to go back to the Charitable Choice model in which the ref - referral requirement was on government and why do that while the government knows all the other providers they funded and uh, can easily make a referral. So I think that would be a good solution although officials have some, uh administrative reasons why they find that a little bit complicated. But I think it would be a good solution and it seems to me important even if these referrals have rarely been requested or maybe hardly ever. Um, that there is that protection there because of the kinds of, instances that Melissa proposed and also because it helps everybody who's thinking about this to realize there really are very solid protections for people of different religions in our very diverse society.

Stanley Carlson:So I would recommend that the Bush, the Trump administration revisit that and not remove the uh, guarantee alternative but find a different way to implement it.

Stanley Carlson:Fifth, Melissa did mention that as part of taking away the guaranteed alternative also the written notice went away. Those were parts of the same um, provision in uh, an executive order from President Obama that was changed by President Trump so it's possible that, uh, that notice could be brought back, um, it's in the regulations, they haven't been changed yet. Original Charitable Choice language didn't include written notice, but when the Bush administration wrote the regulations for Charitable Choice they wrote in notice and why do that? Well exactly as Melissa said, if someone doesn't know what their rights are then they're not really very effective rights.

Stanley Carlson:And then secondly, by having the beneficiary know what their rights are that makes sure that the provider is reminded themselves of what those rights are. They have to hand them out, uh, they know that somebody knows what they are and can check up on them and report them so it's an important check, I think, in systems that can be casually or and fortunately, not very often, but sometimes actually deliberately um, not looking at uh, for all the rights of vulnerable people. And so the notice requirement I hope will come back in a suitable form.

Stanley Carlson:Uh, sixth, just a kind of reminder of this whole effort, and Melissa made some comments about this, this is about making sure federal dollars, federal authority when it comes to nonfinancial partnerships, all goes to the best possible end and that to make sure that people who need assistance, get assistance and it's effective for them, their rights are respected. And, I, we know that with some of the things President Trump has put on the table as important initiatives then a faith and community focus could be quite important.

Stanley Carlson:Just think of the opiod crisis that uh, is so important and needs to be addressed. Uh, part of that has to be uh, the prescription patterns and and making sure those are not abused and finding nonaddictive kinds of uh, pain relief, and all those kinds of things that are being done by the federal government. But it seems pretty clear that an aspect of the opiod crisis has to do with a loss of a sense of hope by persons and families and communities um, maybe a kind of fraying of the social fabric that's happened in various places around the country. And so that's a kind of a faith in the community emphasis and so it's, I think, very significant that under President Trump the health and human services partnership center has been working just as previous administrations did to reach out to uh, communities of faith, institutions of faith and also local groups of other kinds to see how they can best, uh engage on this opiod crisis in the way that they can do best.

Stanley Carlson:And then finally in seventh, uh seventh and finally this common ground aspect. So there are some changes uh, that both Melissa and I find some of that troubling because it does with some common ground principles that had been carefully developed. You know every administration uh, faces some choices because they see some things they would like to change, um. I think even when those are pretty important it's always worth thinking about the continuity and uh, common ground that's been built up in the past. In this case over four administration some principles that, uh a wide range of different groups, different perspectives have come to accept as being a fair way to engage faith organizations in federal programs and protect both, the organizations and beneficiaries. And I think that's an important resource that common ground, that was built um, and ought not be taken away um, unless absolutely necessary. Because just terrible in a polarized time for this to become another, uh, issue that gets batted back and forth as administrations change hands.

Stanley Carlson:So I would uh, ask my myself and join Melissa in saying to the Trump administration uh, is, I think there's probably a better way to deal with this issue with the referrals, one that would assure people that beneficiaries rights are being fully protected while also making sure faith organizations that take part aren't burdened in a way that's unfair to them.

Stanley Carlson:So, with that, um that's our introduction to the Trump, uh executive order on uh, the faith-basedinitiative principles and the apparatus and how it comes on the background and then we will welcome uh, questions that people have.

Laura Flint:Let's go to audience question and answer. In a moment you'll hear a prompt indicating that the floor mode has been turned on. After that to request the floor enter start then the pound key.

Laura Flint:When we get to your request you will hear a prompt and then you may ask your question. We will answer questions in the order in which they are received. Again to ask a question please enter star and then the pound key on your telephone key pad.

Laura Flint:Let's go to our first audience question.

Speaker 5:Hi, I have a question uh that was a difference between the Bush administration and the Obama administration which is the treatment of um, uh, group, religious groups, um based on their deeply ill religious beliefs on issues like same sex marriage and sexual orientation and uh, I wonder if that was dealt with in any specific way or or how you see that playing out under these, under this executive order.

Stanley Carlson:Well so, this this is Stanley and and Melissa may want to jump in, so that's an issue that um, really came to the for, um, mainly after the Bush administration and the Obama administration did take some action on that. This executive order from President Trump uh, doesn't say anything specifically one way or another. Uh, I think um, one thing I would say is that here is, as you know, all-all those listening know this is a very difficult issue of how to be um, fair, respectful, give equal treatment to people not regarding sexual orientation, gender identity, but also deal with the, huh, and also different views of marriage and deal fairly with the quite diverse views there are in the public about this. So, how can that best be done? Um, the Obama administration actually addressed that a little bit in some of the grant programs and I'll leave it to Melissa if she wants to jump in.

Melissa Rogers:So, thanks. Um yeah. Agree with Stanley's description of this as an important and sensitive issue. Um, the main action that the Obama administration took in this, in this space would be the federal um, contracting executive order. Now, look, I'll describe all that but let me first say that most, I don't have statistics on this, but the overwhelming share of partnerships that are financial with, between the federal government and faith-basedand community groups are based in grants or indirect daylight vouchers or certificates. Very rarely are they structured through contracts. Although there are some, but very few.

Melissa Rogers:So, you know, the contracting order only applied to organizations that served as federal contractors and mostly um, these kind of partnerships we're discussing are subsidized through grants and other forms of federal aide. But the federal executive order on um, contracting a long standing order, uh, when President Obama came into office it prohibited discrimination on the basis of a variety of grounds. Race, uh, gender, national origin for example and um, President Bush added a religious exemption to that order so the order also prohibited, um, discrimination by federal contractors on the basis of religion.

Melissa Rogers:President Bush exempted religious organizations from the prohibition on religious discrimination in the executive order which had the effect of allowing religious organizations who served as federal contractors to continue to prefer um, and and to exclusively hire people of their own faith even though they were federal contractors. Um, but the Bush order specifically said that the rest of the order, the rest of the order's prohibitions like just, um, prohibiting discrimination on the base of race and national or in gender still apply to um, religious organizations that are federal contractors. And as any of you know who've looked at the, that can be a little bit complicated sometimes to look at how you parse when a religious organization asserts a religious reason for making a choice um, is it pro - protected by the exemption or prohibited by the rest of the order which continues to apply.

Melissa Rogers:We probably don't have time to get into all of that, but I'll just mention it. When President Obama came into office, it, in the second term he added prohibition on um, discrimination uh, based on sexual orientation or gender identity to the list of issues upon which federal contractors may not discriminate or basis I should say. At the same time he left the exemption, the religious exemption that President Bush had put in place. He didn't, he just left it intact. He did not rescind it, he did not expand it, he left it as it was. So that, I, that's the main thing I would point to as um, as one of the issues that's relevant in this space.

Laura Flint:We have another question in the queue so let's go to that next caller.

Speaker 6:I had a question for uh, Dr. Stanley. You stated that you would support bringing back the written notice requirement in suitable form. Could you elaborate on any particular changes that you meant by that that should be different if it were brought back.

Stanley Carlson:Um, uh, so by saying in suitable form I wasn't actually thinking about any particular changes but if there's not a re - a referral requirement that's not resurrected that you know, that particular um, part of the executive order that was amended um, is not just brought back. President Trump said he didn't want that. Then, there will have to be some presumably, there'll be some kind of statement what ought to be the written uh, requirement. And so I think the the items that were in there previously, um, were perfectly fine.

Stanley Carlson:It could be that I think the re- the notice requirement was for religious organizations that got funding and not for secular ones and that's partly because, or mainly because the main emphasis in there were the religious requirements that um, the religious activities and prohibitions that uh, applied to faith organizations and that's what the rights, written rights were about. But it so happens that we have some uh, federally funded research that shows sometimes secular organizations also may offer religious activities and some religious talk in uh, services they provide and it could be that somebody could object to those as well. So I think the notice requirement about basic rights recipients have beneficiaries probably could be expanded uh, to everyone uh, whatever the organization is that is providing the services.

Melissa Rogers:And I, this is Melissa I just had, I don't have any, any objection to the notice going as wide, you know, notice given to both faith-basedand non faith-basedproviders. Uh, I know that you know, there's one level of principle and there's another level of practicality and I remember when were working on this with the agencies there were some practic - practical issues that they felt like were insurmountable and making sure that the notice went more broadly but that's not, you know, that's not my area of expertise, but, um, if if that you know, if that broadening out of that requirement is done, which again I have no despite with in principle I think we just need to talk about what, if any, uh, are the remaining practical concerns [crosstalk 00:56:32] in that regard.

Stanley Carlson:Yeah, that's a good reminder. So, um, when I worked in the President Bush's faith-basedoffice too um, I learned a huge amount about how programs are administered, but that's a lot different than administering them and of course through the regulatory process or program design or so on that's really important as to what actually is doable, what's feasible, what fits with the actual way services are provided and audits are done and all those kind of things. So, I would, I would, I would second Melissa's um, point there that this is something that people who are designing programs, running programs, need to be involved in what's practical and not practical.

Stanley Carlson:I think one of the uh, challenges here that uh, has had to be, discussed at every step of the way is making sure that appropriate protections are put into place when religious organizations are involved because you know they're religious so that means they have different character and so their tendency to want to offer religious activities as part of their programming is stronger than the typical secular organization. Although sometimes secular organizations too, there's religious talk and so on. And since there is more of that religious talk, religious activity that's associated with religious providers then there have to be specific protections and notice and so on that goes with that.

Stanley Carlson:But that needs to be done in a way, that doesn't kind of subtly change the balance for government official who's saying, who's going to get the grant and is it going to be harder to administer one than the other. It's worth just saying that this is one of the issues that's been struggled with, uh, that's actually church-state issue that has come up all the time. That federal government in some ways would like to engage smaller organizations, religious or not just because they're small they're closer to the ground, they are more adapted to particularities of this neighborhood and that one, but of course it's harder to administer programs that have a lot of small organizations involved. Um, then administer, uh federal program that engages, gives grants to say, two big organizations than fifteen small ones. But the smaller ones may actually be more effective in some ways although they're harder to manage.

Stanley Carlson:So how to write rules that uh, that spend the money wisely that take all these difference into account I think is just a continual challenge and uh, that's also aways for me a good reminder when I see something, hear something that's coming out from an administration I kind of think, that seems really odd to me it could be that actually somebody looked into more deeply than I ever knew I should look and that's hwy some changes were made.

Laura Flint:Well it looks like we're almost up on our time. Are there any closing remarks either of you would like to make?

Melissa Rogers:Um, I'd just like to thank everybody for the conversation. I think it's really important. I'd like to thank Stanley for his very helpful remarks. Um, I concur with him about the sense of continuity and wanting to make sure we um, keep our eye on the ball in terms of serving people in need in the best way possible and protecting religious liberty for everyone.

Stanley Carlson:Yeah so I, I uh second that and thank Federal Society also Kim Colby and the Religious Liberties Practice Group for having this call. It's really important for us as part of the public and also those who are involved as advocates and officials to think these things through carefully but then to build something that can be lasting uh, that people can regard, um, as fair and as part of the common good that's we owe to each other.

Laura Flint:Our next Teleforum conference call is scheduled for Friday, June 1st at 1pm and that call will be on the supply chain, the role of Chinese equipment and US tick, tech.Reminder to keep an eye out for emails announcing upcoming Teleforum calls and to consult the full schedule of our calls on fedsoc website.

Laura Flint:On behalf of the Federalist Society I want to thank our experts for the benefit of their valuable time and expertise today.

Laura Flint:We will collect some feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

Teleforum:Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federal Society multimedia please visit the federal society's website at fedsoc.org/multimedia.